SubHub Web Services Agreement

FULL SERVICE AGREEMENT
What is covered by this Services Agreement?

This Agreement sets out the terms and conditions relating to the Services that SubHub provides to Siteowner, comprising content, membership, payment and website management.  Siteowner should therefore read this Agreement together with the documents and policies referred to in it (the Price List and Privacy & Cookie Policy).  The purpose of this Agreement is to regulate the relationship between Siteowner and SubHub and to ensure that Siteowner understands what it can expect of SubHub, and what Siteowner is expected to do. 

This Services Agreement is a legally binding agreement between:

(1)        SUBHUB LIMITED, whose registered office is at RIVERSIDE, MEADS LANE, WHEATHAMPSTEAD, HERTS AL4 8BZ, registered company number 04524780  (“SubHub”); and

(2)            The publisher of the Site, whether an individual or a legal entity, identified on the application form (“Siteowner”).

together known as “the Parties”, as follows.  The terms used in this Agreement are explained in the Schedule at the end.
1.             Entering into Agreement

1.1           By clicking the box “I accept the terms”, or by indicating so in writing, Siteowner agrees to be bound by the terms of this Agreement from such date.  If Siteowner does not agree to be bound by any term of this Agreement, Siteowner may not make use of the Services.  If Siteowner proceeds to use the Services but does not accept the terms of this Agreement, Siteowner will be infringing SubHub’s Intellectual Property Rights and SubHub may take appropriate legal action against Siteowner in respect of such infringement.

1.2           Subject to the terms and conditions of this Agreement, SubHub hereby grants Siteowner a non-exclusive, non-transferable, limited licence to use the Services in respect only of the Site (“the Licence”).

2.             Services

2.1           The parties will work together on the design of the Site in accordance with the Site Design Process.  Provided that SubHub has delivered draft and final versions of the Site to Siteowner in accordance with the timings set out in the Site Design Process, the Site may go live and the Monthly Fee shall become payable by Siteowner 30 days after the Effective Date.

2.2           In the event that there is any delay in the Site going live as described in Clause 2.1 above and such delay is the fault of Siteowner, Siteowner shall nevertheless pay the SubHub Service Fees in accordance with clause 5 below.

2.3           SubHub will provide the Services as limited by the terms of this Agreement.
3.             Limitations on Siteowner

3.1           Siteowner shall not sub-license, distribute, sell, supply, modify, adapt, amend, incorporate, merge, or otherwise alter the Services. Siteowner shall not attempt to decompile, reverse engineer, otherwise disassemble or attempt to derive any source code relating to the Services.

3.2           Siteowner shall not remove or replicate any logo, copyright or proprietary notices, legends, symbols, labels, watermarks, signatures or any other like marks affixed to or embedded in the Services.  Siteowner shall not carry out any act or omission or permit that infringes or is likely to infringe on any Intellectual Property Rights owned by or relating to SubHub or the Services.

3.3           Siteowner may terminate this Agreement within fourteen (14) days of the date of accepting this Agreement by emailing SubHub at support@subhub.com.  In the event that Siteowner so terminates within such period, Siteowner shall be entitled to a full refund of all Fees paid by Siteowner to SubHub under this Agreement, except where SubHub has already commenced work on the design and building of the Site in accordance with Siteowner’s requirements, and in which case Siteowner shall be liable to SubHub for the cost of all work already undertaken by SubHub prior to the date of termination, based on SubHub’s then prevailing daily rate.

3.4           By accepting these terms, Siteowner hereby warrants that it is not employed by a Competitor and is not intending to offer a service that is substantially comparable to the Services whether alone or jointly with others. Siteowner further agrees and undertakes that it will not offer such a service within twelve (12) months of Siteowner entering into this Agreement.

3.5           Siteowner, unless a company, warrants that he or she is at least eighteen (18) years of age, has a valid credit or debit card and that all information provided by it to SubHub under this Agreement is correct and up to date.  Siteowner agrees to ensure that SubHub is kept up to date in relation to such information from time to time.

3.6           In the event that Siteowner is in breach of any warranties contained in this Clause 3, or if SubHub has reasonable grounds to suspect that Siteowner has breached such Clauses, SubHub may terminate this Agreement forthwith without notice and refuse all future requests by Siteowner to be supplied with the Services.  Siteowner shall not be entitled to a refund of any Fees paid to SubHub in such circumstances.

4.             Passwords and Security

4.1           When Siteowner registers to use the Services, Siteowner will be asked to create a password in a format specified by SubHub (“the Password”).  Siteowner shall not disclose such password to any other person or entity and shall ensure that the password remains confidential for the duration of this Agreement.  In the event that Siteowner knows or has a reasonable suspicion that a third party knows Siteowner’s password, Siteowner shall notify SubHub immediately by contacting SubHub via: support@subhub.com.

4.2           If SubHub has reasonable grounds for believing that Siteowner has misused or is misusing the Password, SubHub may require Siteowner to change the Password or may suspend Siteowner’s use of the Services until such time as SubHub is satisfied that the security of the Services is no longer compromised by Siteowner’s activities.

5.             Fees and Payment

5.1           The Fees comprise the Set-Up Fees and the Service Fees.  The Fees are set out in the Price List.  Siteowner will pay the Set-Up Fee within 7 days of the date of this Agreement.  In respect of payment of any Fees or any other sums due under this Agreement, time shall be of the essence and any non-payment thereof by Siteowner shall amount to a material breach of this Agreement.  In respect of all Service Fees due under the terms of this Agreement, SubHub shall deduct the outstanding amount in full from the Siteowner’s credit card via SubHub’s payment partner, or may collect such Fees via standing order or direct debit.

5.2           Without prejudice to SubHub’s other rights and remedies, in the event that Siteowner does not pay the Fees in accordance with Clause 5.1 above, SubHub  reserves the right to suspend the Services.  Upon suspension of the Services, Siteowner shall be required to pay the outstanding Fees plus any Fees due for the period for which the Services are suspended.  SubHub reserves the right to levy a reasonable sum for any resumption of the Services.

5.3           SubHub reserves the right to vary the Fees from time to time and on thirty (30) days’ notice.  In the event that SubHub reduces the Fees, SubHub shall provide Siteowner with seven (7) days’ notice of such a reduction.

5.4           SubHub processes all Fees paid by Siteowner to SubHub via a payment partner or directly via standing order or direct debit.  The identity of the SubHub payment partner together with a link to its website is set out on the SubHub.com website.  In entering into this Agreement with SubHub, Siteowner agrees to enter into an agreement with SubHub’s payment partner to pay the Fees.  In the event that Siteowner does not enter into such an agreement with SubHub’s payment partner, for whatever reason, this Agreement shall terminate with immediate effect.

5.5           Siteowner is responsible for the payment of all taxes due in respect of any payment Siteowner makes to SubHub pursuant to this Agreement. 

6.             Content Supplied by Siteowner 

6.1           As between SubHub and Siteowner, Siteowner will continue to own any Intellectual Property Rights in the Content.  All Intellectual Property Rights in the other aspects of the Site, including without limitation its user interface, look and feel and functionality, are owned by SubHub SAVE THAT where such look and feel is designed by the Siteowner, it shall be entitled to use that look and feel in respect of other sites and using a designer other than SubHub. Upon termination of this Agreement, each party shall cease to use and to have any right to use the other party’s Intellectual Property Rights SAVE THAT SubHub shall retain the right to use images of the Site in its marketing.

6.2           Siteowner agrees to be entirely responsible for the Content of the Site. Siteowner permits SubHub to use and copy the content for the purposes of providing the Services.  Siteowner accepts and agrees that SubHub is not in any way responsible or shall be held liable for the Content or the way the Siteowner uses the Services.  Without prejudice to this or to any other remedies it may have, SubHub shall have the absolute right at any time and without notice to Siteowner to remove any Content which it considers in its complete discretion is in breach of any of the terms of this Agreement or may otherwise be harmful or prejudicial to SubHub or the Services, and/or may suspend the Services until such time as such material no longer forms a part of the Content.

7.             Use of the Site

7.1           Siteowner hereby warrants that it shall not in SubHub’s opinion and at its entire discretion use the Services or cause the Services to be used to

7.1.1    upload, post, email or otherwise transmit any content that is unlawful, harmful, threatening, abusive, tortuous, defamatory, obscene or invasive of another’s privacy, racially, ethnically objectionable or

7.1.2    use the Services to impersonate or to cause to be impersonated any person or entity or to misrepresent Siteowner’s affiliation with or endorsement by any group, organisation or entity; or

7.1.3    upload, post, email or otherwise transmit any unsolicited or unauthorised advertising, promotional Services, spam or any other form of unlawful or illegal communications including but not limited to any material containing software, viruses or any other code that causes any other digital code or file to act in a manner that is detrimental to the Services; or

7.1.4    infringe the Intellectual Property Rights of any third party.
8.             Users of the Site

8.1           Siteowner shall be solely responsible for the use by end-users of the Site.  Siteowner agrees to ensure that end-users of the Site agree to and abide by terms of use and privacy policy for the Site which provide no less protection to SubHub and the Siteowner than those terms set out in [link].  SubHub hereby permits Siteowner to use the terms and privacy policy set out as at [link] as a template for the terms of use for the Site.  Siteowner agrees and accepts that SubHub is not responsible for the validity, enforceability, sufficiency or applicability of the terms in any given situation and Siteowner agrees to take its own independent legal advice on such issues.

8.2           Siteowner agrees to terminate an end-user’s use of the Site if such end-user is in breach of the terms of use for the Site.

9.             Product Support

9.1           The Services will be provided to Siteowner "as is" and "as available".  SubHub will make all reasonable commercial attempts to make the Services available to Siteowner without interruption but reserves the right to suspend the Services and the Site in order to perform maintenance of the Services at such intervals and for such periods as SubHub may in its complete discretion decide.  Wherever reasonably possible, SubHub will provide Siteowner with prior notice of such activities.

9.2           From time to time SubHub may establish or vary general practices and limits concerning use of the Services, including without limitation email usage, monthly maximum bandwidth usage numbers and sizes of emails sent to an account on the Services, disk space allocated to Siteowner as part of the Services and access by Siteowner to send emails.  Siteowner agrees that SubHub has no responsibility or liability for the deletion or failure to store any messages, other communications or other Content maintained or transmitted by the Services.  Siteowner agrees that it is its responsibility at all times to maintain its own back-up copies of all its Content and communications between Siteowner and other parties. 

10.          Confidentiality 

10.1        Siteowner acknowledges that the Services, including all documentation, techniques, methods, processes, drawings, specifications, plans, diagrams, notes, data, patterns, models, samples, contact details of SubHub employees, consultants and freelancers and all other information relating to SubHub or the Services whether written or oral and whether disclosed by SubHub to Siteowner prior to or after the date of this Agreement (“the Information”) contain valuable trade secrets and confidential information which are SubHub’s property and which are also protected by laws relating to Intellectual Property Rights of various countries. Siteowner agrees that it will keep the Information in strict confidence and will not in any way:

10.1.1  disclose or make available the Information or any portion thereof to any person or entity.  Siteowner will be responsible for ensuring that any third party who, with SubHub’s prior authorisation, accesses the Information, signs a confidentiality agreement on terms no less stringent than those contained in this Agreement in a form acceptable to SubHub which prohibits the unauthorised use or disclosure of any of the Information; or

10.1.2  copy, reproduce or duplicate the Information or any portion thereof in any form or medium, except as expressly provided in this Agreement.

10.2        Siteowner shall maintain the Information and any copies thereof in a secure fashion and will take all reasonable measures consistent with the highest standards of security generally used in the industry for the protection of valuable source code in order to protect the Information and any copies thereof from theft, copying, reproduction, or unauthorised distribution, disclosure, dissemination or use.  Without limiting the foregoing, Siteowner shall:

10.2.1  use at least the same level of security for the Information that Siteowner uses for its own most valuable trade secrets and source code;

10.2.2  use the Information only in a secure area and workstation; and
10.2.3  store any copy of the Information in a safe (or equally secure storage place) when it is not using it.

10.3        Siteowner shall immediately notify SubHub of any unauthorised use or disclosure of, or of any unauthorised access to, or of any theft or loss of any copies of the Services or of any information which constitutes the Information which it suspects or which comes to its attention.

10.4        SubHub accepts that this undertaking does not apply to any part of the Information which:
10.4.1  becomes generally available to third parties by publication or otherwise through no fault of Siteowner;

10.4.2  becomes lawfully known to the Third Party without confidential or proprietary restriction from a source other than SubHub;

10.4.3  is approved by SubHub for disclosure without restrictions in a written document which is signed by one of SubHub’s duly authorised managers or officers; or

10.4.4  Siteowner is able to prove that it was lawfully in possession of prior to such disclosure and which was not acquired directly or indirectly from SubHub  or any of SubHub’s subsidiaries or holding companies.

10.5        Siteowner agrees to keep this Agreement and its contents confidential save where otherwise required by law.
10.6        This clause 10.6 shall survive termination of this Agreement.
11.          Intellectual Property Rights

11.1        Siteowner hereby grants SubHub a non-exclusive, world-wide licence to use, copy, store, transmit, display or otherwise process all Content supplied by Siteowner to SubHub in relation to the provision by SubHub of the Services.

11.2        All title in the Intellectual Property Rights in the Services is owned by SubHub.  Siteowner may not use the Services except as expressly permitted under this Agreement.

11.3        Except for the rights and licence granted under this Agreement, nothing contained in this Agreement shall be construed to grant Siteowner any right, title or interest in or to the Services. SubHub expressly reserves all right, title and interest in and to the Services not specifically granted to Siteowner under this Agreement.

12.          Data Protection

12.1        SubHub agrees not to disclose or make available to any third party any Customer Data relating to the Site that SubHub receives in the course of its performance of its obligations under this Agreement, unless compelled to do so by court order.

12.2        Siteowner hereby acknowledges that for the purposes of the UK Data Protection Act 1998 and in respect of Customer Data Siteowner is the data controller and SubHub is the data processor.  Both parties agree at all times for the duration of this Agreement to comply with any and all relevant data protection legislation.

13.          Limitation of Liability and Indemnity

13.1        To the maximum extent permitted by law, SubHub excludes all warranties, conditions or other terms that may be implied into this Agreement whether by law, statute or otherwise. SubHub gives no condition, warranty or other term whatsoever, either express or implied including, without limitation, as to the condition of any of the Services or of the Information, or as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement of Intellectual Property Rights, or use of reasonable care and skill.  To the maximum extent permitted under applicable law, SubHub shall not be liable in contract, tort or otherwise for any loss or damage, howsoever arising in connection with the Services or this Agreement.  SubHub shall not be liable for any indirect, special, or consequential damages, whether such damages or losses are known, foreseen, foreseeable or unforeseen.  Nothing in this Agreement shall limit SubHub’s liability for negligently caused death or personal injury or fraud.

13.2        Siteowner hereby agrees to indemnify and hold SubHub and SubHub’s subsidiaries, affiliates, officers, agents and employees from and against any third party claim arising from or in any way related to Siteowner’s use of the Services, including but not limited to any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, and legal costs, of every kind and nature.

13.3        Siteowner shall ensure that Siteowner’s computer system, central processing unit or computer is compatible with the Services.

14.           Breach

The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose.  Siteowner recognises that SubHub’s business relies upon the protection of its Intellectual Property Rights and that in the event of a breach or threatened breach of Intellectual Property Rights, SubHub may be caused irreparable damage.  Siteowner agrees that SubHub will therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of SubHub’s Intellectual Property Rights without proof of unquantifiable loss or special damage.

15.          Term and Termination

15.1        SubHub may terminate this Agreement forthwith on giving notice in writing to Siteowner if:

15.1.1  Siteowner commits any breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from SubHub to do so, to remedy the breach; or

15.1.2  Siteowner commits a material breach of this Agreement.

15.2        Siteowner may terminate this Agreement at any time by providing SubHub  within thirty (30) days’ written notice.

15.3        SubHub may terminate this Agreement at any time by providing Siteowner with one-hundred-and- eighty (180) days’ written notice.

15.4        Forthwith upon termination of this Agreement, Siteowner shall cease all use of the Services.

15.5        Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement, which is expressly or by implication intended to come into or continue in force on or after such termination.

16.          Amendments

Save as expressly permitted under this Agreement, the Parties’ obligations under this Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the Parties.

17.          Assignment

Neither this Agreement nor any rights, licences or obligations under it, may be assigned by Siteowner.  SubHub may assign this Agreement or any rights, licences or obligations under it in its sole discretion.

18.          Entire Agreement

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the Parties relating to the subject matter of this Agreement.  However, the obligations of the Parties under any pre-existing non-disclosure agreement shall remain in full force and effect insofar as there is no conflict between the same.  The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

19.          Force Majeure

19.1        Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement, which result from circumstances beyond the reasonable control of that Party.  If such circumstances continue for a continuous period of more than thirty (30) days, either Party may terminate this Agreement by written notice to the other party.

19.2        Any costs arising from such delay shall be borne by the Party incurring the same.

20.          Notices

20.1        Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail, email, or by fax to the address of the relevant party set out at the head of this Agreement or such other address as that party may from time to time notify to the other party in accordance with this clause 23.1.

20.2        Notices sent in accordance with clause 20.1 above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of airmail), or on the same working day in the case of a fax transmission sent before 1600 hrs (in the case of fax messages, but only if a transmission report is generated by the sender’s fax machine recording a message from the recipient’s fax machine, confirming that the fax was sent to the number indicated above and confirming that all pages were successfully transmitted).

20.3        In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be.

21.          Severance

If any provision of this Agreement is prohibited by law or judged by a court of competent jurisdiction to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances pertaining to this Agreement or the validity or enforcement of this Agreement.

22.           Successors and Assignees

22.1        This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and expressly permitted assignees, and references to a party in this Agreement shall include its successors and expressly permitted assignees.

22.2        In this Agreement references to a Party include references to a person:

22.2.1      who for the time being is entitled (by expressly permitted assignment, novation or otherwise) to that party’s right under this Agreement (or any interest in those rights); or

22.2.2      who, as administrator, liquidator or otherwise, is entitled to exercise those rights; and

22.2.3      in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that Party.  For this purpose, references to a Party’s rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.

23.          Waiver

No delay, neglect or forbearance on SubHub’s part in enforcing any term or condition of this Agreement against Siteowner shall be or be deemed to be a waiver or in any way prejudice any of SubHub’s rights under this Agreement.  No right, power or remedy in this Agreement conferred upon or reserved for SubHub is exclusive of any other right, power or remedy available to SubHub.

24.          Third Parties
The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
25.          Proper Law and Jurisdiction

25.1        This Agreement and all matters arising from it shall be governed by and construed according to the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.

SCHEDULE
Definitions
The following terms when used in this Agreement shall have the following meaning:

“Competitor”  means any organisation, company, body corporate, individual or group of people that produces, writes, sells, markets, distributes or is otherwise involved in the business of offering for sale a Services substantially comparable to the Services;

“Content”   means all data, images, words, logos pictures and all other information of whatever nature made available to third parties via the Site by Siteowner or by SubHub on Siteowner’s behalf;

“Customer Data” means information that relates to a living individual who can be identified;
(a)  from that information; or

(b)  from that information and other information which is in the possession of, or is likely to come into the possession of, the parties.

“Fees”   means the Set Up Fees and the Service Fees;

“Information”
means as defined in Clause 10.1;

“Intellectual Property Rights”    means any copyright, database right, design right, patent, rights in inventions, trade mark, Services mark, domain name, confidential information, know-how, business name, trade name, get-up, trade dress, right to sue for passing off or for unfair competition and any other intellectual property rights whether applied for, registered or unregistered and wheresoever held in the world;

“Licence”  means as defined in clause 1.2;

“Password”
 means as defined in clause 4.1;

“Price List”
  means the prevailing list of prices for the Services as varied by SubHub from time to time;

“Privacy and Cookie Policy”
 means SubHub’s policy more particularly described at http://www.SubHub.com/privacypolicy;

“Registration Details” means the URL of the Site together with Siteowner’s name, address, contact telephone contact numbers and email address and all other relevant details collected from Siteowner’s by SubHub at the time of registration.

“Services”  means services described as being provided by SubHub or by a third party on SubHub’s behalf on the www.subhub.com web site, which may include without limitation website design, content management, membership management, website management payment processing services.

“Service Fees” means the Set-Up Fee, Monthly Fees and any other fees to be charged for use of the Service.
“Site” means the website Siteowner proposes to launch and operate using the Services.
“Site Design Process”  means as set out in the New Publisher Design Process document. [link]
“Third Party Materials”  means as defined in clause [·].
 
INTERPRETATION
In this Agreement unless the context otherwise requires:
 (a)  words importing the singular number include the plural number and vice versa;
 (b)  words importing persons include firms, companies and corporations and vice versa;
 (c) references to numbered clauses are references to the relevant clauses in this Agreement;
 (d) the headings to the clauses and paragraphs of this Agreement will not affect the interpretation;

 (e)  any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment;

 (f)  any Party that agrees to do something will be deemed to fulfil that obligation if that Party procures that it is done.
 
END.

 
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